In 2017, during the 115th Congress, a bipartisan group of Senators introduced the Regulatory Accountability Act. This was a serious effort to significantly update the procedural provisions of the APA for the first time since its enactment in 1946. Among other reforms, the 2017 RAA would have:  

• required agencies to maintain a public rulemaking record; 

• mandated disclosure of all scientific and technical information employed by the agency; 

• established minimum public comment periods of 30 days for regular rules and 60 days for “major” rules (with estimated impacts of $100 million or more);  

• provided a framework to govern the use of interim final rulemaking;  

• placed controls on “midnight” rulemaking that are rushed out the door during a president’s lame duck; and,   

• codified procedures for retrospective review of rules. 

The authors of the 2017 RAA modeled many of these measures off recommendations made by the American Bar Association. Crucially, the bill’s requirements applied evenly to regulation and deregulation. Proponents, such as Professor Chris Walker, described it as “common-sense, bipartisan legislation.”  

Critics, on the other hand, focused on a single provision. For example, Professor Richard Pierce described the 2017 RAA as “a good effort, with one glaring flaw.” That “flaw” was a requirement for agencies to employ formal rulemaking procedures for “genuinely disputed” matters in any “major” rulemaking expected to have an annual effect on the economy of $100 million or more. Other esteemed scholars similarly concentrated their criticisms on this provision, arguing that formal rulemakings are so time-consuming and process-heavy as to unduly stifle regulatory output.  

Despite the bill’s bipartisan appeal, the 2017 RAA failed in the 115th Congress.  

Fast forward to the present. In the 119th Congress, Oklahoma Senator James Lankford has introduced S. 1708, a revised version of the Regulatory Accountability Act. Sen. Lankford’s legislation largely tracks the 2017 RAA, and both bills are rooted in the proportionality principle, meaning that administrative scrutiny increases if the cost of the regulation exceeds a certain threshold ($100,000,000/year). However, Sen. Lankford made one critical revision: S. 1708 drops the requirement for agencies to conduct formal rulemakings for “major” rules with disputed facts. Instead, S. 1708 would require agencies to conduct an extra comment period for major rules, during which commenters could reply to other comments. (See section (c)(4)(C)). The upshot is that the bill’s sponsor removed the provision that had caused so much controversy in 2017.    

To be sure, there are minor differences between the 2017 RAA and S. 1708. For example, the 2017 RAA calls for agencies to choose the “most cost-effective rule,” while S. 1708 directs agencies to “maximize net benefits.” Yet there doesn’t seem to be much space between these two concepts (especially since both bills allow exceptions to these requirements).   

In 2017, the RAA had evident bipartisan appeal, and, since then, it has been revised in a way that directly addresses its critics. Given this background, one might imagine that S. 1708 enjoys even more bipartisan support than the 2017 RAA. Alas, this is not the case. Sen. Lankford’s bill has no co-sponsors from the Senate Democratic Caucus.  

I have no ready explanation for the erosion of support for a bill that was revised to satisfy its critics. As AEI’s Philip Wallach has observed, regulatory politics are very much part and parcel of today’s partisan distrust on Capitol Hill. Could Congress have become significantly more polarized in only 9 years? Things were already quite polarized in 2017!  

There was a time, of course, when thoughtful regulatory reform enjoyed support from all sides. The APA, after hard wrought compromise, passed unanimously in 1946. Like the APA, S. 1708 reflects copious compromise. I’ve little doubt that Sen. Lankford’s revised bill would have been a slam dunk in many prior Congresses. Even nine years ago, it seems to me that S. 1708 would win 60 votes in the Senate.  

For my part, I’m an optimist. I’d like to think that S. 1708 enjoys zero bipartisan support simply because no one knows about it, and it’s just a matter of getting the word out.